The standard questions that courts must address in trademark and deceptive advertising law are these:
- Are consumers likely to be confused as to the source of a trademark or likely to be deceived by a commercial message?
- How can we know unless we examine consumer reaction?
As a result of the importance of these findings, surveys have become perhaps the standard form of evidence on consumer perception in cases involving trademarks and deceptive advertising. Yet it is far more difficult to produce a well-designed survey than is commonly understood. Trademark and Deceptive Advertising Surveys: Law, Science, and Design fills a substantial gap in the literature on surveys and in trademark law, providing attorneys, judges, and researchers with a close analysis of survey design in trademark law.
This compendium offers practical tools for recognizing and appreciating good survey methodology and distinguishing valuable evidence from its counterpart. Focusing on the various issues that trademark surveys address, chapter authors discuss a topic relating to design or analysis that an attorney presenting, defending, or critiquing a survey must deal with. This unique volume brings together the viewpoints of academic and legal experts on surveys and survey methodology, combining both theory and practice in a single resource.
Using actual and hypothetical cases, Trademark and Deceptive Advertising Surveys explains how the courts have addressed these issues and offers strategic guidance on how to identify important issues, understand options, and the optimal way the issues should be handled. Topics covered include:
- Surveys in litigation involving trademark and deceptive advertising claims
- Preliminary matters, including the use of pilot tests and pretests, and selecting the universe
- Legal questions in these surveys, including the most common issue, likelihood of confusion, as well as secondary meaning, fame and dilution, and the growing area of survey evidence in false advertising cases
- The use of controls, both fundamentals and design issues
- Responding to survey results
- Other important issues in survey design and evaluation, including demand effects, closed-end questions, and Internet surveys